implementation of EU law

In the opinion of the Regional Court in Elbląg (judgement of 15 April 2015, I Ca 68/15), allowing the seller to rely in proceedings on the defence based on the pleading of the non-existence of the claim in case the seller fails to reply to a demand from the consumer (buyer) to have the good restored to the condition stipulated by the agreement, and as a result this demand being deemed justified, would mean the limitation in exercising consumer rights. The failure to react to the consumer’s demands within the prescribed term creates the fiction of allowing the claim, which means the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of the handover thereof.

In the opinion of the District Court in Siemianowice Śląskie (judgement of 15 September 2016, I C 741/16), on the one hand the legislation provides for instruments making it possible to protect the consumer against unfair market practices, but on the other hand there functions a procedure of pursuing claims (in this case: payment order proceedings on the basis of a promissory note), which makes it possible to considerably weaken, in the consumer trade practice, the application of instruments of consumer protection. The Court, by limiting itself to an assessment of whether a promissory note has been issued correctly, does not need to examine whether a consumer loan agreement contains any abusive clauses, or whether the information obligations of the lender have been fulfilled, etc. Therefore, the provisions on payment order proceedings constitute a clear intrusion into the system of protecting the consumer against unfair market practices, which are described in Article 76 of the Constitution.

The Civil Chamber of the Supreme Court of Poland referred its second preliminary question to the CJEU (following a previous one reported previously on Polish Private Law). This time it addressed issues of intellectual property protection, against the background of the 2004/48/EC directive of 29 April 2004 on the enforcement of intellectual property rights. The Court confronted this act with the domestic remedies in the case of copyright infringements, concluding that the possibility to award damages without ascertaining the real amount of loss, as set forth in the Polish regulation, is not compliant with the EU rules, excluding penal measures in these terms.

A few days ago, on 24 June 2014, the Act on Consumer Rights was finally published. The Act transposes the Consumer Rights Directive and re-transposes the Consumer Sales Directive to Polish law. The Act was adopted on 30 May 2014 and it will come into force six month after its publication, in December 2014.

The vast majority of rules of the Consumer Rights Directive have been transposed outside of the Civil Code (although, during the work on the transposition, there were voices suggesting its inclusion into the Civil Code). Only a few rules of a general contractual character are going to be included into the Civil Code.

Ph.D. candidate at the Faculty of Law, Jagiellonian University, and a legal counsel in Cracow Chamber of Legal Counsel. In 2010 he earned a degree in law from UMCS in Lublin and in 2011 he earned a licentiate in canon law from KUL in Lublin. In 2011 he also graduated from UMCS with a degree in computer science. He prepares a doctoral dissertation on copyrights protection for computer programs’ source code.

Mateusz Grochowski

Ph.D., assistant professor in the Institute of Legal Studies of the Polish Academy of Sciences and in the Institute of Justice, assistant in the Civil Chamber of the Supreme Court of the Republic of Poland, holder of scholarships of the Foundation for Polish Science and of the of National Science Centre, visiting scholar at the Università degli Studi di Trento. In his research focuses on regulatory problems of contract law.

Piotr Jantos

Ph.D. candidate at the Faculty of Law, Jagiellonian University, and a legal counsel. In 2010 he earned a degree in law from UMCS in Lublin and in 2011 he earned a licentiate in canon law from KUL in Lublin. In 2011 he also finished postgraduate studies in EU law at the Jagiellonian University. He prepares a dissertation on the exhaustion doctrine applied to computer software distribution in the European Union law.